When
William Rehnquist swore in George W. Bush as president on Jan. 20, the
U.S. Supreme Court chief justice completed a near-decade-long struggle
by conservative jurists to put their political allies in control of the
U.S. government – a victory that marks a radical shift in American
democracy.

Never before in American history
have a chief justice and other federal judges exploited their
extraordinary powers as brazenly to advance clearly partisan interests
as have Rehnquist and his fellow Republican appointees – jurists sworn
to enforce the laws impartially and to protect the Constitution.

Yet there is a history to this
development that the news media has missed. This unprecedented
politicization of the federal courts dates back at least to the early
1990s when federal judges – including Rehnquist – adopted legal
strategies to protect the Reagan-Bush administrations from the legal
fallout of the Iran-contra scandal.

This partisanship arced higher
through the Clinton administration and reached its apex with the
installation of George W. Bush as president.

On a personal level,
Rehnquist’s history of behind-the-scenes political machinations dates
back even further to the 1960s when he opposed desegregation in Phoenix
and worked on Republican “ballot security” in Arizona, a program
criticized as intimidation of African-American and other minority
voters.

According to a Senate summary of
the opposition to Rehnquist's 1986 nomination to be chief justice,
Rehnquist "publicly opposed a Phoenix public accommodations
ordinance, and he publicly challenged a plan to end school segregation
in Phoenix, stating that 'we are no more dedicated to an integrated
society than a segregated society.'

"Moreover," the
summary said, "in the early 1960s, he led a Republican Party
ballot security program designed to disenfranchise minority voters. The
[Senate Judiciary] Committee has received sworn testimony from numerous
credible witnesses that, as part of his involvement in the ballot
security program, Mr. Rehnquist personally challenged the eligibility of
minority voters. Justice Rehnquist has categorically denied this. But,
none of these witnesses had anything to gain by misrepresenting the
truth."

Though Rehnquist's denial of the
"ballot security" charges prevailed as he won Senate
confirmation, he seemed equally callous to minority voting rights in
2000 when he ensured that the votes of African-Americans and other
minorities were undercounted, this time in Florida.

In the weeks after the ruling to
stop the Florida vote count, the Rehnquist court’s intervention has
come into clearer focus.

Shifting Reasons

New information indicates that
the five conservative justices flipped their legal rationale nearly 180
degrees between Dec. 11, when they were first prepared to rule in
Bush’s favor, and the night of Dec. 12 when the decision to make Bush
president finally was announced.

The judicial gymnastics
demonstrated how Rehnquist and the four other conservatives settled on a
political outcome – Bush’s victory – and then dressed up the
choice in legal verbiage.

USA Today disclosed this
inside story in an article about the strains that the Bush v. Gore
ruling created within the court. [USA Today, writer Joan Biskupic,
Jan. 22, 2001]

Though the article was
sympathetic to the five conservative justices, it disclosed an important
fact: that the five justices were planning on ruling for Bush after oral
arguments on Dec. 11. The court even sent out for Chinese food for the
clerks, so the work could be completed that night.

On Dec. 11, the legal rationale
for stopping the recount was to have been that the Florida Supreme Court
had made “new law” when it referenced the state constitution in an
initial recount decision – rather than simply interpreting state
statutes.

Even though this argument was
highly technical, the rationale at least conformed with the conservative
principles of the five-member majority, supposedly hostile to judicial
“activism.”

However, the Florida Supreme
Court threw a wrench into the plan. On the evening of Dec. 11, the state
court submitted a revised ruling that deleted a passing reference to the
state constitution. The revised state ruling based its reasoning
entirely on state statutes that permitted recounts in close elections.

This revised state ruling drew
little attention from the press, but it created a crisis for the five
conservatives. Justices Sandra Day O’Connor and Anthony Kennedy no
longer felt they could agree with the “new law” rationale for
striking down the recount, though Justices Rehnquist, Antonin Scalia and
Clarence Thomas still would, USA Today reported.

O’Connor and Kennedy then
veered off in very different direction, USA Today said. Through
the day of Dec. 12, they worked on an opinion arguing that the Florida
Supreme Court had failed to set consistent standards for the recount and
that the disparate county-by-county standards constituted a violation of
the “equal protection” rules of the 14th Amendment.

This argument was quite thin and
Kennedy reportedly had trouble committing it to writing.

To anyone who had followed the
Florida election, it was clear that varied standards already had been
applied throughout the state. Wealthier precincts had benefited from
optical voting machines that were simple to use and eliminated nearly
all errors, while poorer precincts with many African-Americans and
retired Jews were stuck with outmoded punch-card systems with far higher
error rates. Some counties had conducted manual recounts, too, and those
totals were part of the tallies giving Bush a tiny lead.

The statewide recount, even if
there were slight variations of standards regarding “intent of the
voters,” was designed to reduce these disparities and thus bring the
results closer to equality. Applying the “equal protection”
provision, as planned by O’Connor and Kennedy, turned the 14th
Amendment on its head, guaranteeing less equality than letting the
recounts go forward.

Indeed, if one were to follow
the “logic” of the O’Connor-Kennedy position, the only “fair”
conclusion would have been to throw out Florida’s presidential
election in total. After all, Florida’s disparate standards were being
judged unconstitutional. Without some form of recount to eliminate those
disparities, the statewide results would violate the 14th
Amendment.

That, however, would have meant
that Al Gore would become president because, without Florida, Gore had a
majority of the remaining electoral votes. Clearly, the five
conservatives had no intention of letting their “logic” lead to that
result.

Yet possibly even more startling
than the stretched logic of O’Connor-Kennedy was the readiness of
Rehnquist, Scalia and Thomas to sign on to a ruling that was almost
completely at odds with their own legal rationale for blocking the
recounts.

On the night of Dec. 11, that
trio was ready to bar the recount because the Florida Supreme Court had
created “new law.” On Dec. 12, the same trio barred the recount
because the Florida Supreme Court had not created “new law,” the
establishment of precise statewide recount standards.

The five conservatives had
devised their own Catch-22. If the Florida Supreme Court set clearer
standards, that would be struck down as creating “new law.” If the
state court didn’t set clearer standards, that would be struck down as
violating the “equal protection” principle. Heads Bush wins; tails
Gore loses.

Rationalizing the Rationale

After the court's Dec. 12 ruling
and Gore's concession the next day, Justice
Thomas told a group of high school students that partisan considerations
play a "zero" part in the court's decisions. Later, asked
whether Thomas's assessment was accurate, Rehnquist answered,
"Absolutely."

In later oblique comments about
the court’s role in the case, Rehnquist seemed unfazed by the
inconsistency of the logic. His overriding rationale seemed to be that
he viewed Bush’s election as good for the country – whether the
voters thought so or not.

In a speech to a Catholic
service organization on Jan. 7, the chief justice said sometimes the
U.S. Supreme Court needed to intervene in politics to extricate the
nation from a crisis.

Rehnquist’s remarks were made
in the context of the Hayes-Tilden race in 1876, when another popular
vote loser, Rutherford B. Hayes, was awarded the presidency after
justices participated in a special election commission.

“The political processes of
the country had worked, admittedly in a rather unusual way, to avoid a
serious crisis,” Rehnquist said.

Scholars interpreted
Rehnquist’s remarks as shedding light on his thinking during the Bush
v. Gore case as well.

“He’s making a rather clear
statement of what he thought the primary job of our governmental process
was,” said Michael Les Benedict, a history professor at Ohio State
University. “That was to make sure the conflict is resolved
peacefully, with no violence.” [Washington Post, Jan. 19, 2001]

But where were the threats of
violence in the 2000 election? Gore had reined in his supporters, urging
them to avoid confrontations and to trust in the “rule of law.”

The only violence had come from
the Bush side, when protesters were flown from Washington to Miami to
put pressure on local election boards.

On Nov. 22, as the Miami-Dade
canvassing board was preparing to examine ballots rejected by the voting
machines, a well-dressed mob of Republican operatives charged the
office, roughed up some Democrats and pounded on the walls. The
canvassing board promptly reversed itself and decided to forego the
recount.

The next night, the Bush-Cheney
campaign feted these brown-shirts-in-blue-blazers at a hotel party in
Fort Lauderdale. Starring at the event was crooner Wayne Newton singing
"Danke Schoen," but the highlight for the operatives was a
thank-you call from George W. Bush and his running mate, Dick Cheney,
both of whom joked about the Miami-Dade incident. [Wall Street
Journal,Nov. 27, 2000]

The Journal also reported
that the assault on the Miami-Dade canvassing board was led by national
Republican operatives "on all expense-paid trips, courtesy of the
Bush campaign."

The Journal noted that
"behind the rowdy rallies in South Florida this past weekend was a
well-organized effort by Republican operatives to entice supporters to
South Florida," with House Majority Whip Tom DeLay's Capitol Hill
office taking charge of the recruitment.

In other less violent ways, the
Bush-Cheney team signaled that they would not accept an unfavorable vote
total in Florida.

If Gore pulled ahead, the
Republican-controlled state legislature was prepared to void the
results. In Washington, the Republican congressional leadership also was
threatening to force a constitutional crisis if Gore prevailed in
Florida.

If one takes Rehnquist’s
“good-for-the-country” rationale seriously, that means the U.S.
Supreme Court was ready to award the presidency to the side most willing
to use violence and other anti-democratic means to overturn the will of
the voters.

Ignoring the Voters

Gore won the national popular
vote by more than a half million votes and was almost certainly the
choice of the voters of Florida but for confusing ballots, inefficient
voting machines and improperly purged African-American voters.

Yet instead of ruling that the
vote tabulations alone would decide the victor – a position the U.S.
Supreme Court could have taken – the Rehnquist court intervened to
hand the presidency to Bush, the apparent loser.

The reason – under this
"good-for-the-country" rationale – was that Gore and his
supporters were less likely to disrupt the political process or to
resort to violence, if they were declared the losers.

To reward a political party
simply because it is ready to throw the country into crisis is a bad
precedent for reasons that every parent understands when dealing with a
child’s temper tantrum.

But other evidence suggests that
Rehnquist’s real motives were even less lofty and far more
premeditated.